James McGirr Kelly, Assistant District Attorney, with him Juanita Kidd Stout, Assistant District Attorney, James N. Lafferty, First Assistant District Attorney, and Victor H. Blanc, District Attorney, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Bok, JJ.

Author: Musmanno

[ 394 Pa. Page 336]

OPINION BY MR. JUSTICE MUSMANNO.

On June 22, 1957, in the city of Philadelphia, Curtis Raymond Edwards, being then 14 years and 11 months of age, shot and killed Martin Daniels, Sr. He was indicted for murder and found guilty of murder in the first degree with the penalty fixed at life imprisonment. He has appealed for a new trial, alleging trial errors. Only one needs to be considered.

The defense was insanity. The Trial Judge charged the jury: "Now, if you find that the defense of insanity, as I have outlined it to you, has been established by a fair preponderance of the evidence, then you should render a verdict of acquittal. However, if you do not believe the defense of insanity has been proved by a fair preponderance of the evidence by the defendant upon whom the burden rests, then you must fix the degree of crime by a verdict of guilty of either murder in the first degree with penalty of death, or murder in the first degree with penalty of life imprisonment; or murder in the second degree or voluntary manslaughter. You must weigh the evidence as you find the facts under the law as I have instructed you and arrive at one, and only one, of the five possible verdicts which I have now submitted to you."

Under this charge the Trial Judge ruled out the possibility of a simple verdict of Not Guilty. He told the jury that they could render a verdict of acquittal because of insanity but not for any other reason. He said that they could return "one, and only one" of the five possible verdicts he enumerated. These five possible verdicts were: 1. Not Guilty because of insanity. 2. First degree murder with death. 3. First degree

But suppose the jury did not believe that a crime had been committed or, if committed, that the defendant was not the one who had done the deed. The Commonwealth, emphasizing that the defendant killed Martin Daniels, Sr., and that the defendant admitted the killing, argues: "It seems ridiculous to require the Trial Court to continue to charge on the presumption of innocence once the defendant has admitted the circumstances surrounding the offense." History has demonstrated that there have been many so-called ridiculous cases in which innocent persons have been accused of crime and often unjustly convicted, even executed. It is not for the prosecuting officials to say whether the position of the defendant, insofar as the judge's charge is concerned, is ridiculous or not.

The Commonwealth says further: "While a presumption of innocence continues until there is a conviction, it would be unreasonable to expect a jury to acquit an admitted slayer who had absolutely no justification or excuse for committing the slaying."

But it must still be left to the jury to decide whether an admitted slayer had or did not have justification or excuse for what he did. While it may be true that in many cases where the slayer admits to the slaying, there can be little or no justification or excuse for the homicide, there have also been many deaths which the law has acknowledged as unavoidable or justified under the circumstances. Many automobile mishaps fall within the former category and self-defense killings come within the latter.

To say that a judge need not charge on an indispensable requirement in the law because the defendant is assuredly guilty is to hang the accused first and indict him afterwards. It is the trial and the trial alone

[ 394 Pa. Page 338]

which decides whether a defendant is assuredly guilty. The presumption of innocence is not merely a papermache figure for dramatic display in the courtroom; it is a reality without which trials become mere playacting with the verdict residing in the judge's pocket before the jury is sworn. Even, if in a hypothetical case, the evidence of guilt piles as high as Mt. Everest on Matterhorn, even if the District Attorney conscientiously believes the defendant to be as guilty as Cain, and no matter with what certainty the Judge views the culpability of the accused at the bar, the defendant is still entitled to all the safeguards of a fair trial as announced in the Constitution and the law of the land. An eminent English author, in a recently published book, said that "the rules governing the admissibility of evidence are something of a mystery to the man in the street, who is apt to think of them as lawyers' hocus-pocus. This view is unwarranted. Though they sometimes seem - and sometimes are - mechanical and arbitrary in operation, such rules are based on long and rich experience of what is required to protect the individual."*fn1

In the same manner, there are certain rules concerning a judge's charge which simply cannot be ignored since they are based on long and rich experience of what is required to protect the individual accused of crime.

Our system of jurisprudence is based on precedent. To allow a glaring omission in a judge's charge to go uncorrected would mean that in future trials where the evidence to convict would not be so overwhelming as the District Attorney and the lower Court believe it to be in this case, a similar omission could not be

[ 394 Pa. Page 339]

complained of because this case would be cited as a precedent. It will be recalled that when Bassanio asked that the law be modeled to ...

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